Cold War: The Legal Battle Between Good Humor and the Popsicle Corporation

Advances in refrigeration technology led to an explosion in the world of ice creams and other frozen treats in the early 1900s. The ice cream cone, ice cream bar, Eskimo Pie, disposable ice cream cup, and ice pop were all invented or popularized within the first two decades of the century. Just a few years later, Harry Burt and Frank Epperson almost simultaneously invented what would become two of America’s most enduring brands of frozen novelty.

Burt, a Youngstown, Ohio, confectioner, hit upon a “new, clean, convenient way to eat ice cream” when he inserted a stick into a chocolate-covered ice cream bar. He called it the Good Humor Bar.

Epperson’s invention was less intentional. As a young man, he’d left a sweet, syrupy soft drink with a stirring stick outside on a cold night. When he went to retrieve it in the morning, he found the drink frozen around the stick. Later, he recreated his accident for manufacture. He dubbed it the “Epsicle,” but his kids quickly renamed it the “Pop’s Sicle.”

The Popsicle, as it was eventually branded, was what you would call sherbet or water ice on a stick, while the Good Humor Bar was chocolate-covered ice cream on the same conveyance. They seem different enough, but the similarities were a little too close for the comfort of the inventors. Both Burt and Epperson held patents on the methods for making their products and on a few pieces of specialized equipment involved, and had filed lawsuits against imitators before. The almost-instant success of their respective treats brought them to each other’s attention, and a legal battle broke out.

Burt had received his patents first and, through them, insisted that he had the sole rights to all forms of frozen confections on sticks. In 1925, Good Humor sued the Popsicle Corporation for infringement of its rights. The parties reached an out-of-court agreement that basically split the market. Popsicle would pay a licensing fee to Burt, and would limit their products to treats “comprising a mass of flavored syrup, water ice or sherbet frozen on a stick.” Burt, meanwhile, would keep the exclusive rights to produce “frozen suckers from ice cream, frozen custard or the like." They also agreed to that Popsicle’s products would maintain a “cylindrical form,” while “rectangular forms” would be Burt's.

Got Milk Popsicles?

The agreement kept the peace for a while, but some of Popsicle’s licensees pressured the company to capitalize on a drop in dairy prices with an ice-cream-on-a-stick product of its own. In 1931, Popsicle approached Good Humor with the idea of redefining the division of products to allow them to manufacture products with less than 4.5% butter fat, like a “milk popsicle.”

Good Humor rebuffed them, but their agreement allowed Popsicle to make “sherbet,” without giving a set definition to the term. Popsicle felt confident that an ice milk with 4.48% butter fat (and a cylindrical form) counted as sherbet and didn’t violate the agreement. They began rolling the product out in 1931 and Good Humor brought them back to court almost immediately.

The testimony from both sides largely revolved around the definition of sherbet, with Good Humor arguing that it was "flavored water ice,” and Popsicle claiming that a milk sherbet was still a sherbet in the parlance of the ice cream industry.

The judge ultimately decided that “sherbet” in the 1925 agreement was strictly meant to mean a "water sherbet," and issued an injunction against Popsicle’s new product. Permanent peace only came years later when both the Good Humor Bar and the Popsicle came under the ownership of Unilever.

Though reading and writing might not come to mind as the first requirement for trench warfare, during the early 20th century, the U.S. Army became increasingly concerned with whether or not its soldiers were literate. Thousands of World War I soldiers couldn't read printed directions on basic military tasks. The Army didn't implement its first major literacy program until the 1940s, but literacy tests were included in a battery of psychological evaluations World War I recruits went through to determine their mental fitness and intelligence, as the blog Futility Closet recently highlighted.

These unconventional literacy tests largely took the form of a yes or no questions with obvious answers, according to the 1921 report from the U.S. Surgeon General, Psychological Examining in the United States Army. Edited by pioneering intelligence-testing psychologist Robert Yerkes, who developed the military's first psychology exams for new recruits (and was also famous for his support for eugenics), the volume is a lengthy compilation of all of the methods the U.S. Army used to test the intelligence of its future soldiers. Many of these tests are now considered racist and culturally biased—some of the "intelligence" testing questions required recruits to know things like what products Velvet Joe (a figure used in tobacco campaigns) advertised—but some of the literacy questions, in particular, simply come off as weird in the modern era. Some are downright existential, in fact, while others—"Is a guitar a disease?"—come off as almost poetic.

Psychological Examining in the United States Army, Google Books // Public Domain

One test, the Devens Literarcy Test, asked recruits questions like "Is genuine happiness a priceless treasure?" and "Does success tend to bring pleasure?" Another section of the test asked "Do boys like to play?" and "Do clerks enjoy a vacation?"

Other questions seem like they're up for debate, like "Are painters ever artless individuals?" and "Is extremely athletic exercise surely necessary?" Surely the answers to questions like "Should criminals forfeit liberty?" and "Is misuse of money an evil?" depend on the opinions of the reader. The answer to "Do imbeciles usually hold responsible offices?" might be different depending on how the person feels about their Congressional representative, and could surely be the spark for an hour-long argument at most dinner parties.

Still others are tests of cultural knowledge, not reading skill—a major modern criticism of Yerkes's work. Despite being arguably a pretty literate person, I certainly don't know the answer to the question "Do voluntary enlistments increase the army?" A question like "Are 'diminutive' and 'Lilliputian' nearly identical?" isn't exactly a test of literacy, but a test of whether or not you've read Gulliver's Travels, which doesn't exactly seem like a necessity for military success.

Luckily, some of the questions are pretty obvious, like "Is coal white?" That one I can answer. The full list of questions used in the various versions of the Devens test is below for you to test your own Army-level literacy.

While Volkswagen has announced—for a second time—that it's going to cease production on the Beetle, people are still singing the praises of the quirky little car. Here are 10 not-so-small things you need to know about the German car that was once named one of the top four cars of the century.

1. THE RUMOR THAT THE BEETLE BEGAN WITH HITLER IS (SORT OF) TRUE.

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It’s long been said that Adolf Hitler was the man behind the Beetle, and that’s sort of true. The dictator wanted German families to be able to afford a car, so he enlisted automaker Ferdinand Porsche (yes, that Porsche) to make “the people’s car.” But the basis for the Beetle had been around since long before Hitler’s demand; the Bug was heavily influenced by Porsche's V series. Rumors that Hitler directly designed the car are probably false; though he was the one who reportedly said that the car should look like a beetle, because “You only have to observe nature to learn how best to achieve streamlining,” it’s likely that he was regurgitating something he had read in an automotive magazine. Still, one thing is for certain: Hitler himself placed the cornerstone for the Porsche factory in Wolfsburg, Germany.

2. AMERICANS WEREN’T IMPRESSED.

Perhaps still wary of anything imported from Germany, Americans shunned the Beetle when it was introduced in the States in 1949: Only two were sold in the first year. But after that, sales grew quickly. By the 1960s, hundreds of thousands of Bugs were sold every year, topping out at 570,000 in 1970.

3. VW DIDN’T ORIGINALLY CALL IT THE “BEETLE” OR THE “BUG.”

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We have the public to thank for the car’s distinctive nickname. Originally known as the Volkswagen Type 1, the car’s curves and rounded top led to its later, insect-like moniker. Volkswagen must have realized they had a good thing on their hands, because they started referring to the car as the VW Beetle in the late 1960s.

4. THE CAR HAS EQUALLY ADORABLE NICKNAMES IN OTHER COUNTRIES.

The UK and the U.S. aren’t the only countries that bestowed a new name on the Volkswagen Type 1. In France, it's called Coccinelle, which means ladybug. It's Maggiolino and Fusca in Italy and Brazil, respectively, both of which mean "beetle." Mexico calls it Vocho; it's Peta(turtle) in Bolivia; and Kodok (frog) in Indonesia.

5. “THINK SMALL” WAS VOTED THE TOP ADVERTISING CAMPAIGN OF THE CENTURY.

In 1999, Advertising Age declared the car's not-so-small ad campaign to be the best campaign of the last 100 years, besting Coca-Cola, Marlboro, Nike, and McDonald’s. The quirky concept and copy—which, according to Advertising Age, “Gave advertising permission to surprise, to defy and to engage the consumer without bludgeoning him about the face and body”—was a game-changer for the entire industry.

The "Think Small" line and accompanying self-deprecating copy was written by Julian Koenig, who was also responsible for naming Earth Day and coming up with Timex’s “It takes a licking and keeps on ticking” tagline. He’s also half-responsible for daughter Sarah Koenig, whom you may know from NPR’s This American Life and Serial.

6. BEETLES AND POP CULTURE GO HAND-IN-HAND.

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Because of their distinctive aesthetic, VW Bugs have been associated with everything from the Beatles to Transformers. A few highlights:

The Beetle with the license plate “LMW 28IF” on the cover of The Beatles' Abbey Road album was sold at an auction for $23,000 in 1986. It is now on display at Volkswagen's AutoMuseum at the company’s headquarters in Wolfsburg, Germany.

The Fremont Troll sculpture in Seattle, a huge statue lurking under the Aurora Bridge, clutches an actual VW Beetle. An in-progress picture shows that the car was once red. It also once contained a time capsule of Elvis memorabilia, which was stolen.

The Herbie the Love Bug series was a big hit for Disney in the late 1960s and early 1970s. One of the original Herbies sold for $126,500 at an auction in 2015.

In the original Transformers cartoon, Bumblebee transformed from a VW Bug. The car was changed to a Camaro for the live-action movies.

7. THE CAR’S FAMOUS BUD VASE IS NO LONGER.

The so-called “blumenvasen,” a small vase that could be clipped to the dashboard, speaker grille, or windshield, was porcelain when it was originally offered. The nod to flower power became such a symbol of the car that it was incorporated into the 1998 redesign. Sadly, it didn’t make the cut for the most recent overhaul: The vase was eliminated in 2011 by marketing execs apparently seeking to make the car more male-friendly.

8. VW HAS MARKED SPECIAL OCCASIONS WITH ONE-OF-A-KIND BUGS.

When the millionth VW Beetle rolled off the line in 1955, the company capped the achievement by plating the car in gold and giving it diamante accents. They also created a Bug with a wicker body in collaboration with master basket-maker Thomas Heinrich.

9. BRITISH CAR MANUFACTURERS TURNED DOWN THE OPPORTUNITY TO MAKE THE BEETLE.

After WWII, the VW factory in Wolfsburg, Germany, was supposed to be handed over to the British. No British car manufacturer wanted to take responsibility for the company, though, saying that "the vehicle does not meet the fundamental technical requirement of a motor-car," "it is quite unattractive to the average buyer," and that "To build the car commercially would be a completely uneconomic enterprise." Whoops.